As filed with the Securities and Exchange Commission on July 12, 1996.
Registration No. 33-59340
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
FRANKLIN OPHTHALMIC INSTRUMENTS CO., INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-3123210
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
1265 Naperville Drive, Romeoville, Illinois 60446; Phone: (800) 831-1194
(Address of Principal Executive Offices)
Amended and Restated Consulting Agreement by and among
Franklin Ophthalmic Instruments Co., Inc., Tiger Eye Acquisitions, L.L.C.,
and Jason H. Pollak
(Full title of plan)
The Prentice Hall Corporation System, Inc.
1013 Centre Road, Wilmington, Delaware 19805-1297
(Name, address and telephone number of agent for service)
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933 check the following box: |X|
Copies to:
Victoria A. Baylin, Esquire
De Martino Finkelstein Rosen & Virga
1818 N Street, N.W., Suite 400
Washington, D.C. 20036-2492
(202) 659-0494
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price per Aggregate Offering Registration
to be Registered Registered Share Price1 Fee1
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock2 300,000 $0.53 $159,000 $318.00
Common Stock3 300,000 $0.53 $159,000 $318.00
======= ===== ======== =======
Total* 600,000 $1.06 $318,000 $636.00
======= ===== ======== =======
</TABLE>
1 The offering price per share has been calculated in accordance with Rule
457(h) under the Securities Act of 1933 based upon the average of the bid and
asked prices of the Common Stock on July 10, 1996.
2 Represents shares of Common Stock issuable to Jason H. Pollak pursuant to the
terms of an Amended and Restated Consulting Agreement (referenced above) which
is to occur at or about the time of filing and effectiveness of this
Registration Statement on Form S-8.
3 Represents shares of Common Stock issuable to Jason H. Pollak pursuant to the
terms of an Amended and Restated Consulting Agreement (referenced above), which
is to occur at or about the time of filing and effectiveness of this
Registration Statement on Form S-8.
<PAGE>
PART I
Item 1: Plan Information.
This Registration Statement (the "Registration Statement") relates to
the issuance of shares of common stock, par value $.001 per share (the "Common
Stock") of Franklin Ophthalmic Instruments, Co., Inc. (the "Company") to Jason
H. Pollak (the "Consultant") pursuant to the terms of a Consulting Agreement,
dated as of June 30, 1995, and a Consulting Agreement, dated as of December 19,
1995, each such agreement by and among the Company, Tiger Eye Acquisitions,
L.L.C. (formerly Kalo Acquisitions, L.L.C.), and the Consultant as amended by a
certain letter agreement dated April 30, 1996 (the "Consulting Agreements").
Pursuant to the terms of the Consulting Agreements, the Company is obligated to
issue to the Consultant an aggregate of up to 600,000 shares of Common Stock in
exchange for the Consultant's providing certain marketing and consulting
services to the Company. Pursuant to the terms of the Consulting Agreements, the
term of each Consulting Agreement was six months.
The foregoing information relating to the provisions of the
Consulting Agreements are intended to provide a summary thereof and does not
purport to be a complete description of the Consulting Agreements. Such summary
should be read in conjunction with the Consulting Agreements which have been
filed as Exhibit 10.1 hereto and is incorporated herein by reference in its
entirety.
Item 2: Registrant Information and Employee Plan Annual Information.
The Consultant has been provided with copies of the documents
incorporated herein by reference in Part II: Item 3 hereof and has been advised
by the Company in writing that such documents will continue to be available,
without charge, to the Consultant upon the Consultant's written request to the
Company at its offices at 1265 Naperville Drive, Romeoville, Illinois 60446
(Phone: (800) 831-1194).
PART II
Item 3: Incorporation of Documents by Reference.
The following documents (and any amendments thereto) filed by the
Company with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein in their entirety, and shall be deemed to be a
part hereof from the date of filing such documents:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1995 filed with the Commission on May 3, 1996 (File No.
0-21852);
1
<PAGE>
(b) the Company's Quarterly Report on Form 10-QSB for the quarter
ended December 31, 1995 filed with the Commission on May 30, 1996 (File No.
0-21852);
(c) the Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1996 filed with the Commission on June 7, 1995 (File No.
0-21852);
(d) all other documents filed by the Company after the date of this
Registration Statement under Sections 13(a), 13(c), 14 and 15(d) of the
Securities and Exchange Act of 1934, prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all of the
securities covered hereunder have been sold or which deregisters all of such
securities remain unsold; and
(e) the description of the Common Stock as set forth in the Form 8A,
filed with the Commission on May 27, 1993, on behalf of the Company, as the same
has been or may hereafter be amended (File No. 0-21852), is incorporated herein
by reference in its entirety. In connection therewith, the following description
is provided:
The Common Stock was initially registered under Section 12(g) of the
Securities Exchange Act of 1934, as amended, on May 27, 1993, on the Form 8A
referenced above on behalf of the Company. The Company is currently authorized
to issue up to 25,000,000 shares of Common Stock, par value $.001 per share and
1,000,000 shares of preferred stock, par value $.001 per share. As of the date
hereof, there are 7,610,026 shares of Common Stock issued and outstanding and no
shares of preferred stock are outstanding.
Holders of the Common Stock are entitled to one vote per share on
each matter submitted to vote at any meeting of shareholders. Shares of Common
Stock do not carry cumulative voting rights and therefore, holders of a majority
of the outstanding shares of Common Stock will be able to elect the entire board
of directors of the Company and, if they do so, minority shareholders would not
be able to elect any members to the Company's board of directors. The Company's
board of directors has authority, without action by the Company's shareholders,
to issue all or any portion of the authorized but unissued shares of Common
Stock, which would have the effect of reducing the percentage of securities
ownership of the Company's shareholders and diluting the book value of the
Common Stock.
Shareholders of the Company have no preemptive rights to acquire
additional shares of Common Stock. The Common Stock is not subject to redemption
and carries no subscription or conversion rights. In the event of liquidation of
the Company, the holders of shares of Common Stock are entitled to share equally
in corporate assets after the holders, if any, of preferred stock and after
satisfaction of liabilities. Holders of Common Stock are entitled to receive
such dividends as the Company's board of directors may from time to time declare
out of funds legally available for the payment thereof. The Company has never
paid cash dividends on its Common Stock and does not anticipate that it will pay
cash dividends thereon in the foreseeable future.
2
<PAGE>
Item 4: Description of Securities.
Not applicable.
Item 5: Interests of Named Experts and Counsel.
Not applicable.
Item 6: Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law empowers a
corporation to indemnify its directors and officers and to purchase insurance
with respect to liability arising out of their capacity or status as directors
and officers provided that such provision shall not eliminate or limit the
liability of a director: (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) arising under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit.
The Delaware General Corporation Law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the directors and officers of a corporation may be entitled
under the corporation's bylaws, any agreement, vote of shareholders or
otherwise.
Article Tenth of the Company's Certificate of Incorporation
eliminates the personal liability of directors to the fullest extent permitted
by Section 102(b)(7) of the Delaware Corporation Law.
The effect of the foregoing is to require the Company to indemnify
the officers and directors of the Company for any claim arising against any such
person in his official capacity if such person acted in good faith and in a
manner that such person reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS, OFFICERS OR PERSONS CONTROLLING
THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS, THE COMPANY HAS BEEN INFORMED
THAT IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION, SUCH
INDEMNIFICATION IS AGAINST PUBLIC POLICY AS EXPRESSED IN THE ACT AND IS
THEREFORE UNENFORCEABLE.
Item 7: Exemption from Registration Claimed.
Not applicable.
3
<PAGE>
Item 8: Exhibits.
The following exhibits are attached hereto:
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit Page No.
- ----------- ---------------------- --------
<S> <C> <C>
5.1 Opinion letter of De Martino Finkelstein Rosen & Virga,
included in the Opinion of Counsel filed as Exhibit 23.1
10.1 Consulting Agreement, dated as of June 30, 1995, by and
among Franklin Ophthalmic Instruments Co., Inc., Tiger Eye
Acquisitions L.L.C., and Jason H. Pollak
10.2 Consulting Agreement, dated as of December 19, 1995, by
and among Franklin Ophthalmic Instruments Co., Inc., Tiger
Eye Acquisitions L.L.C., and Jason H. Pollak
10.3 Letter of Amendment, dated April 30, 1996, by and among
Franklin Ophthalmic Instruments Co., Inc., Tiger Eye
Acquisitions L.L.C., and Jason H. Pollak
23.1 Consent of De Martino Finkelstein Rosen & Virga
23.2 Consent of BDO Seidman LLP
</TABLE>
Item 9: Undertakings.
(a) Undertakings Pursuant to Rule 415 under the Securities Act of
1933. The Company hereby undertakes that it will:
(1) File, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: to include any
additional or changed material information with respect to the plan of
distribution not previously disclosed in this Registration Statement;
(2) For the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) Remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Undertaking Relating to Filings Incorporating by Reference
Subsequent Exchange Act Documents. The Company hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Company's annual report pursuant to
4
<PAGE>
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended)
that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Undertaking Specific to Filing of Registration Statement of Form
S-8. Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer, or
controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933, as amended, and will be governed by
final adjudication of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing this Amended Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Romeoville, Illinois, on this 10th day of July,
1996.
FRANKLIN OPHTHALMIC INSTRUMENTS CO., INC.
By: /s/ Michael J. Carroll
------------------------
Michael J. Carroll, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated below.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael J. Carroll President, Chief July 10, 1996
- ------------------------------- Chief Executive
Michael S. Carroll Officer, and Director
/s/ James J. Urban Executive Vice July 10, 1996
- ------------------------------- President, Chief
James J. Urban Operating Officer and
Director
/s/ Brian Carroll Chief Financial July 10, 1996
- ------------------------------- Officer
Brian Carroll
/s/ Linda S. Zimdars Director July 10, 1996
- -------------------------------
Linda S. Zimdars
- ------------------------------- Director
Philip G. Winters
</TABLE>
EXHIBIT 10.1
CONSULTING AGREEMENT
BY AND AMONG
FRANKLIN OPHTHALMIC INSTRUMENTS CO., INC.
KALO ACQUISITIONS, L.L.C.
AND
JASON H. POLLAK
THIS AGREEMENT (the "Agreement") is entered into as of this 30th day of June
1995, by and among Franklin Ophthalmic Instruments Co., Inc., a Delaware
corporation with principal offices at 1237 Naperville Drive, Romeoville,
Illinois 60441 (the "Corporation"), Jason H. Pollak (hereinafter referred to as
"Pollak" or the "Consultant" as the context may require) and Kalo Acquisitions,
L.L.C., a Delaware limited liability company with principal offices at 165 EAB
Plaza, West Tower, Suite 628, Uniondale, New York 11556-0165 ("Kalo").
WHEREAS, Kalo, through its manager and employees has developed expertise in
and is in the business of providing consulting services, including providing
investor and public relations services;
WHEREAS, Pollak is the manager and an employee of Kalo, and has expertise in
the area of providing consulting services, including providing investor and
public relations services;
WHEREAS, the Corporation desires to engage Pollak to provide services to the
Corporation as set forth below, upon the terms and subject to the conditions set
forth herein;
WHEREAS, Pollak desires to provide services to the Corporation as set forth
below, upon the terms and subject to the conditions set forth herein;
WHEREAS, Kalo, Pollak and the Corporation have agreed that Pollak shall
render the services set forth below to the Corporation upon the terms and
subject to the conditions set forth herein; and
WHEREAS, Kalo has agreed to provide Pollak the opportunity to avail himself
of Kalo's resources including without limitation, use of any phone lines,
computers, photocopiers, facsimile machines, postage meters and other supplies
in exchange for Pollak's reimbursement to Kalo of the costs of the same.
NOW, THEREFORE, in consideration of the foregoing and for such other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Engagement. The Corporation hereby engages the Consultant to render to it for
a period of six (6) months commencing July 1, 1995 (the "Term") the investor and
public relations services described herein. The Term hereof may be renewed for
successive periods of six (6)
1
<PAGE>
months each upon the written agreement of the Corporation, Kalo and the
Consultant entered into prior to expiration of the initial Term hereof.
2. Services. For the Term of this Agreement, the Consultant shall perform the
following services for the Corporation:
(a) Prepare and distribute, with the Company's prior approval, due-diligence
packages for the brokerage community which would include presentation folders,
press release sheets and a Corporation overview pamphlet;
(b) Prepare and distribute investor relations packages;
(c) Provide a dedicated "800" toll-free telephone number for investors to
utilize;
(d) Coordinate broker presentations to be held a minimum of four (4) times
per year;
(e) Prepare and disseminate information about the Corporation to investors;
(f) Present and introduce the Corporation to broker/dealers, fund managers
and analysts on a continual basis;
(g) Prepare and disseminate, with the Company's prior approval, press
releases in compliance with any applicable regulatory guidelines to wire/news
services;
(h) Disseminate for informational purposes the Corporation's publicly filed
materials, including the Corporation's Annual and Current Reports on Form 10-KSB
and Form 10-QSB, respectively, to investors;
(i) Assist with the set up of annual and special shareholder meetings;
(j) Provide for the production and presentation, with the Company's prior
approval, on national/local television stations of infomercials about the
Corporation;
(k) Assist in the preparation and filing of an application (and other
appropriate materials) with the Nasdaq SmallCap Market(sm) ("Nasdaq") for
re-inclusion of the Corporation's securities for quotation on Nasdaq;
(l) Perform such other services as may be reasonably requested from time to
time by the officers of the Corporation;
(m) Reimburse Kalo for its costs related to the use of any of its resources
as contemplated herein;
(n) Locate and introduce at least fifteen (15) broker/dealers and/or market
makers to the Corporation to make a market in the Corporation's securities; and
2
<PAGE>
(o) Bear all costs and expenses relating to any of the foregoing.
3. Compensation. In consideration for the performance of the services described
above, the Corporation shall issue to the Consultant an aggregate of up to three
hundred thousand (300,000) shares of its common stock, par value $.001 per share
(the "Common Stock") as follows:
(a) one hundred thousand (100,000) shares of Common Stock shall be issued
upon execution of this Agreement; and
(b) thirty-three thousand three hundred thirty-three (33,333) shares of
Common Stock shall be issuable thereafter on the last day of each month during
the Term of this Agreement.
4. Registration Rights. The Corporation or shall file, as soon as practicable
after execution hereof, a registration statement relating to the shares of
Common Stock issuable pursuant hereto on Form S-8 with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933
(the "Act"). In the event that, for any reason whatsoever, such Form S-8 is not
available for use by the Corporation, the Corporation shall file such form of
registration statement as is available for use by the Corporation as specified
or otherwise permitted by the Act and the rules and regulations promulgated
thereunder. The Corporation shall bear the expenses of such registration and
shall: (a) provide prospectuses meeting the requirements of the Act and such
other documents as the Consultant may reasonably request for a period of at
least twelve (12) months following the effectiveness of such registration
statement in order to facilitate the sale or other disposition of such
securities; (b) register and qualify for sale any of such securities in such
states as the Consultant may reasonably designate; and (c) do any and all other
acts and things which may be necessary or desirable to enable the Consultant to
consummate the sale or other disposition of such securities.
The Consultant hereby acknowledges that it understands that:
(a) the shares of Common Stock issuable hereunder have not previously been
the subject of registration under the Act or any applicable state securities
laws;
(b) the Consultant may not sell or otherwise transfer such shares unless they
are subject to an effective registration statement under the Act and any
applicable state securities laws (unless exemptions from such registration
requirements are available);
(c) until such shares of Common Stock are subject to an effective
registration statement under the Act, a legend will be placed on any certificate
or certificates evidencing the same indicating that such securities have not
been registered under the Act and setting forth or referring to the restrictions
on transferability and sales of such securities; and
(d) the Corporation will place stop transfer instructions against the
certificate or certificates evidencing such shares of Common Stock to restrict
the transfer thereof.
3
<PAGE>
The Consultant hereby agrees not to resell the shares of Common Stock without
compliance with the Act and any applicable state securities laws. The Consultant
hereby represents and warrants that:
(a) the Consultant has received and carefully read the following: (i) the
Corporation's Annual Report on Form 10-KSB for the period ended September 30,
1994 (File No. 0-21852); (ii) the Corporation's Quarterly Reports on Form 10-QSB
for the periods ended December 31, 1994 and March 31, 1995 (File No. 0-21852);
(iii) the Corporation's Current Report on Form 8-K dated April 1, 1995 (File No.
0-21852); (iv) all other information necessary to verify the accuracy and
completeness of the Corporation's representations, warranties and covenants made
herein; and (v) written or verbal responses for all questions the Consultant has
submitted to the Corporation regarding its acquisition of the securities
described herein, all of which the Consultant acknowledges have been provided to
the Consultant (the "Corporate Materials"). The Consultant has not been
furnished with any other materials or literature relating to the acquisition of
the securities described herein, other than the Corporate Materials. The
Consultant has been given the opportunity to ask questions of and to receive
answers from the Corporation concerning the terms and conditions of the
acquisition of the securities described herein and the Corporate Materials, and
to obtain such additional written information necessary to verify the accuracy
of same as the Consultant desires in order to evaluate the acquisition of and
investment in the securities described herein. The Consultant acknowledges and
confirms that the written and/or verbal responses provided to the Consultant by
the Corporation in response to the Consultant's questions are not contrary to or
inconsistent with, nor do they in any way conflict with the information set
forth in the Corporate Materials. The Consultant further acknowledges that it
fully understands the information contained in the Corporate Materials and the
Consultant has had the opportunity to discuss any questions regarding the
Corporate Materials with its counsel or other advisor. Notwithstanding the
foregoing, the only information upon which the Consultant has relied is that set
forth in the Corporate Materials and that derived by its own independent
investigation. The Consultant acknowledges that the Consultant has received no
representations or warranties from the Corporation or its employees or agents in
making an investment decision related to the acquisition of the securities
described herein, other than as set forth herein;
(b) the Consultant is aware that the acquisition of the securities described
herein is a speculative investment involving a high degree of risk and that
there is no guarantee that the Consultant will realize any gain from its
acquisition of or investment in such securities. The Consultant has specifically
reviewed the Corporate Materials with a view toward acquiring the securities
described herein;
(c) the Consultant understands that no federal or state agency or other
authority: (i) has made any finding or determination regarding the fairness of
the transactions described herein, (ii) has made any recommendation or
endorsement of the transactions described herein, or (iii) has passed in any way
upon this agreement or the Corporate Materials;
(d) the Consultant: (i) is acquiring the securities described herein solely
for its own account for investment purposes only and not with a view toward
resale or distribution thereof,
4
<PAGE>
either in whole or in part; and (ii) has no contract, undertaking, agreement or
other arrangement, in existence or contemplated, to sell, pledge, assign or
otherwise transfer the securities to any other person;
(e) the Consultant has adequate means of providing for its current needs and
contingencies and has no need for liquidity in the investment in the securities
described herein. The Consultant has read, is familiar with and understands Rule
501 of Regulation D and represents that it is an "accredited investor" as
defined in Rule 501(a) of Regulation D under the Act. The Consultant has no
reason to anticipate any material change in its financial condition for the
foreseeable future;
(f) the Consultant is financially able to bear the economic risk of an
investment in the securities described herein, including the ability to hold
such securities indefinitely and to afford a complete loss of an investment in
such securities;
(g) the Consultant's overall commitment to investments which are not readily
marketable is not disproportionate to the Consultant's net worth, and the
Consultant's investment in the securities described herein will not cause such
overall commitment to become excessive. The Consultant understands that the
statutory basis on which such securities are being issued to the Consultant
would not be available if the Consultant's present intention were to hold such
securities for a fixed period of time or until the occurrence of a certain
event. The Consultant realizes that, in the view of the Commission, the
acquisition of such securities now with a present intention to resell by reason
of a foreseeable specific contingency or any anticipated change in the market
value of such securities, or in the condition of the Corporation or that of the
industry in which the business of the Corporation is engaged or in connection
with a contemplated liquidation, would, in fact, constitute an acquisition
and/or purchase with an intention inconsistent with the Consultant's
representations to the Corporation and the Commission would then regard such
purchase as a purchase for which the exemption from registration under the Act
relied upon by the Corporation in connection herewith is not available; and
(h) the Consultant has such knowledge and experience in financial and
business matters as to capable of evaluating the merits and risks of the
acquisition of and an investment in the securities described herein.
Kalo and the Consultant hereby acknowledge that they have been advised that
the Commission has commenced an informal inquiry into certain business,
accounting and/or operational practices of the Corporation that may adversely
affect the ability of the Corporation to register the offer and sale of the
shares of Common Stock subject hereto. Kalo and the Consultant further
acknowledge that they have been provided with copies of the correspondence from
the Commission in connection therewith.
5. Confidential Information. The parties hereto recognize that it is fundamental
to the business and operation of the Corporation, its subsidiaries and divisions
thereof to preserve the specialized knowledge, trade secrets, and confidential
information of the foregoing entities. The
5
<PAGE>
strength and good will of the Corporation is derived from the specialized
knowledge, trade secrets, and confidential information generated from experience
through the activities undertaken by the Corporation, its subsidiaries and
divisions thereof. The disclosure of any of such information and the knowledge
thereof on the part of competitors would be beneficial to such competitors and
detrimental to the Corporation, its subsidiaries and divisions thereof, as would
the disclosure of information about the marketing practices, pricing practices,
costs, profit margins, design specifications, analytical techniques, concepts,
ideas, process developments (whether or not patentable), customer and client
agreements, vendor and supplier agreements and similar items or technologies. By
reason of performance under this Agreement, the Consultant may have access to
and may obtain specialized knowledge, trade secrets and confidential information
such as that described herein about the business and operation of the
Corporation, its subsidiaries and divisions thereof. Therefore, the Consultant
hereby agrees that he shall keep secret and retain in confidence and shall not
use, disclose to others, or publish, other than in connection with the
performance of services hereunder, any information relating to the business,
operation or other affairs of the Corporation, its subsidiaries and divisions
thereof, including but not limited to, confidential information concerning the
marketing practices, pricing practices, costs, profit margins, products,
methods, guidelines, procedures, engineering designs and standards, design
specifications, analytical techniques, technical information, customer, client,
vendor or supplier information, employee information, or other confidential
information acquired by each of them in the course of providing services for the
Corporation. The Consultant agrees to hold as the Corporation's property all
notes, memoranda, books, records, papers, letters, formulas and other data and
all copies thereof and therefrom in any way relating to the business or
operation of the Corporation, its subsidiaries and divisions thereof, whether
made by the Corporation or the Consultant or as may otherwise come into the
possession of the Consultant. Upon termination of this Agreement or upon the
demand of the Corporation, at any time, the Consultant shall deliver the same to
the Corporation within twenty-four (24) hours of such termination or demand.
6. Reformation. In the event that a court of competent jurisdiction determines
that the confidentiality provisions hereof are unreasonably broad or otherwise
unenforceable because of the length of their respective terms or the breadth of
their territorial scope, or for any other reason, the parties hereto agree that
such court may reform the terms and/or scope of such covenants so that the same
are reasonable and, as reformed, shall be enforceable.
7. Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware without regard to the principles of
conflicts of laws thereof and shall inure to the benefit of and be binding upon
Kalo, the Consultant and the Corporation and their respective legal successors
and assigns.
8. Remedies. In the event of a breach of any of the provisions of this
Agreement, the non- breaching party shall provide written notice of such breach
to the breaching party. The breaching party shall have thirty (30) days after
receipt of such notice in which to cure its breach. If, on the thirty-first
(31st) day after receipt of such notice, the breaching party shall have failed
to cure such breach, the non-breaching party thereafter shall be entitled to
seek damages. It is acknowledged that this Agreement is of a unique nature and
of extraordinary
6
<PAGE>
value and of such a character that a breach hereof by the Consultant or the
Corporation shall result in irreparable damage and injury for which the
non-breaching party may not have any adequate remedy at law. Therefore, if, on
the thirty-first (31st) day after receipt of such notice, the breaching party
shall have failed to cure such breach, the non-breaching party shall also be
entitled to seek a decree of specific performance against the breaching party,
or such other relief by way of restraining order, injunction or otherwise as may
be appropriate to ensure compliance with this Agreement. The remedies provided
by this section are non-exclusive and the pursuit of such remedies shall not in
any way limit any other remedy available to the parties with respect to this
Agreement, including, without limitation, any remedy available at law or equity
with respect to any anticipatory or threatened breach of the provisions hereof.
9. No Continuing Waiver. The waiver by any party of any provision or breach of
this Agreement shall not operate as or be construed to be a waiver of any other
provision hereof or of any other breach of any provision hereof.
10. Notice. Any and all notices from either party to the other which may be
specified by, or otherwise deemed necessary or incident to this Agreement shall,
in the absence of hand delivery with return receipt requested, be deemed duly
given when mailed if the same shall be sent to the address of the party set out
on the first page of this Agreement by registered or certified mail, return
receipt requested, or express delivery (e.g., Federal Express).
11. Severability of Provisions. The provisions of this Agreement shall be
considered severable in the event that any of such provisions are held by a
court of competent jurisdiction to be invalid, void or otherwise unenforceable.
Such invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as possible in term and intent to those provisions deemed to be invalid,
void or otherwise unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest extent permitted by
law.
12. Assignability. This Agreement shall not be assignable without the prior
written consent of the non-assigning party or parties hereto and shall be
binding upon and inure to the benefit of any heirs, executors, legal
representatives or successors or permitted assigns of the parties hereto.
13. Entire Agreement; Amendment. This Agreement contains the entire agreement
among the Corporation, Kalo and the Consultant with respect to the subject
matter hereof. This Agreement may not be amended, changed, modified or
discharged, nor may any provision hereof be waived, except by an instrument in
writing executed by or on behalf of the party against whom enforcement of any
amendment, waiver, change, modification or discharge is sought. No course of
conduct or dealing shall be construed to modify, amend or otherwise affect any
of the provisions hereof.
14. Headings. The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of the provisions of this Agreement.
7
<PAGE>
15. Termination. The Corporation may terminate this Agreement with or without
cause at any time upon delivery of fifteen (15) days prior written notice to the
other parties hereto. Any such termination shall result in the termination of
Kalo's and/or the Consultant's respective rights to receive any further
compensation, except with respect to accrued compensation which Kalo and/or
Consultant shall have the right to receive notwithstanding termination hereof.
16. Survival. Sections 5 through 9 and Sections 11 through 13 shall survive the
termination for any reason of this Agreement (whether such termination is by the
Corporation, upon the expiration of this Agreement by its terms or otherwise).
* * * * *
8
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement for Consulting
Services to be executed and delivered by their duly authorized officers as set
forth below and have caused their respective corporate seals to be hereunder
affixed as of the date first above written.
FRANKLIN OPHTHALMIC INSTRUMENTS CO., INC.
By: /s/ Michael J. Carroll
-----------------------------------
Michael J. Carroll, President
KALO ACQUISITIONS, L.L.C.
By: /s/ Jason H. Pollak
-----------------------------------
Jason H. Pollak, Manager
THE CONSULTANT
/s/ Jason H. Pollak
----------------------------------------
Jason H. Pollak
9
EXHIBIT 10.2
CONSULTING AGREEMENT
BY AND AMONG
FRANKLIN OPHTHALMIC INSTRUMENTS CO., INC.
KALO ACQUISITIONS, L.L.C.
AND
JASON H. POLLAK
THIS AGREEMENT (the "Agreement") is entered into as of this 19th day of
December 1995, by and among Franklin Ophthalmic Instruments Co., Inc., a
Delaware corporation with principal offices at 1237 Naperville Drive,
Romeoville, Illinois 60441 (the "Corporation"), Jason H. Pollak (hereinafter
referred to as "Pollak" or the "Consultant" as the context may require) and Kalo
Acquisitions, L.L.C., a Delaware limited liability company with principal
offices at 165 EAB Plaza, West Tower, Suite 628, Uniondale, New York 11556-0165
("Kalo").
WHEREAS, Kalo, through its manager and employees has developed expertise in
and is in the business of providing consulting services, including providing
investor and public relations services;
WHEREAS, Pollak is the manager and an employee of Kalo, and has expertise in
the area of providing consulting services, including providing investor and
public relations services;
WHEREAS, the Corporation desires to engage Pollak to provide services to the
Corporation as set forth below, upon the terms and subject to the conditions set
forth herein;
WHEREAS, Pollak desires to provide services to the Corporation as set forth
below, upon the terms and subject to the conditions set forth herein;
WHEREAS, Kalo, Pollak and the Corporation have agreed that Pollak shall
render the services set forth below to the Corporation upon the terms and
subject to the conditions set forth herein; and
WHEREAS, Kalo has agreed to provide Pollak the opportunity to avail himself
of Kalo's resources including without limitation, use of any phone lines,
computers, photocopiers, facsimile machines, postage meters and other supplies
in exchange for Pollak's reimbursement to Kalo of the costs of the same.
NOW, THEREFORE, in consideration of the foregoing and for such other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Engagement. The Corporation hereby engages the Consultant to render to it for
a period of six (6) months commencing January 1, 1996 (the "Term") the investor
and public relations services described herein. The Term hereof may be renewed
for successive periods of six (6) months each upon the written agreement of the
Corporation, Kalo and the Consultant entered into prior to expiration of the
initial Term hereof.
1
<PAGE>
2. Services. For the Term of this Agreement, the Consultant shall perform the
following services for the Corporation:
(a) Prepare and distribute, with the Company's prior approval, due-diligence
packages for the brokerage community which would include presentation folders,
press release sheets and a Corporation overview pamphlet;
(b) Prepare and distribute investor relations packages;
(c) Provide a dedicated "800" toll-free telephone number for investors to
utilize;
(d) Coordinate broker presentations to be held a minimum of four (4) times
per year;
(e) Prepare and disseminate information about the Corporation to investors;
(f) Present and introduce the Corporation to broker/dealers, fund managers
and analysts on a continual basis;
(g) Prepare and disseminate, with the Company's prior approval, press
releases in compliance with any applicable regulatory guidelines to wire/news
services;
(h) Disseminate for informational purposes the Corporation's publicly filed
materials, including the Corporation's Annual and Current Reports on Form 10-KSB
and Form 10-QSB, respectively, to investors;
(i) Assist with the set up of annual and special shareholder meetings;
(j) Provide for the production and presentation, with the Company's prior
approval, on national/local television stations of infomercials about the
Corporation;
(k) Assist in the preparation and filing of an application (and other
appropriate materials) with the Nasdaq SmallCap Market(sm) ("Nasdaq") for
re-inclusion of the Corporation's securities for quotation on Nasdaq;
(l) Perform such other services as may be reasonably requested from time to
time by the officers of the Corporation;
(m) Locate and introduce at least fifteen (15) broker/dealers and/or market
makers to the Corporation to make a market in the Corporation's securities; and
(n) Bear all costs and expenses relating to any of the foregoing.
3. Compensation. In consideration for the performance of the services described
above, the Corporation shall issue to the Consultant an aggregate of up to three
hundred thousand
2
<PAGE>
(300,000) shares of its common stock, par value $.001 per share (the "Common
Stock") as follows:
(a) one hundred thousand (100,000) shares of Common Stock shall be issued
upon execution of this Agreement; and
(b) thirty-three thousand three hundred thirty-three (33,333) shares of
Common Stock shall be issuable thereafter on the last day of each month during
the Term of this Agreement.
4. Registration Rights. The Corporation or shall file, as soon as practicable
after execution hereof, a registration statement relating to the shares of
Common Stock issuable pursuant hereto on Form S-8 with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933
(the "Act"). In the event that, for any reason whatsoever, such Form S-8 is not
available for use by the Corporation, the Corporation shall file such form of
registration statement as is available for use by the Corporation as specified
or otherwise permitted by the Act and the rules and regulations promulgated
thereunder. The Corporation shall bear the expenses of such registration and
shall: (a) provide prospectuses meeting the requirements of the Act and such
other documents as the Consultant may reasonably request for a period of at
least twelve (12) months following the effectiveness of such registration
statement in order to facilitate the sale or other disposition of such
securities; (b) register and qualify for sale any of such securities in such
states as the Consultant may reasonably designate; and (c) do any and all other
acts and things which may be necessary or desirable to enable the Consultant to
consummate the sale or other disposition of such securities.
The Consultant hereby acknowledges that it understands that:
(a) the shares of Common Stock issuable hereunder have not previously been
the subject of registration under the Act or any applicable state securities
laws;
(b) the Consultant may not sell or otherwise transfer such shares unless they
are subject to an effective registration statement under the Act and any
applicable state securities laws (unless exemptions from such registration
requirements are available);
(c) until such shares of Common Stock are subject to an effective
registration statement under the Act, a legend will be placed on any certificate
or certificates evidencing the same indicating that such securities have not
been registered under the Act and setting forth or referring to the restrictions
on transferability and sales of such securities; and
(d) the Corporation will place stop transfer instructions against the
certificate or certificates evidencing such shares of Common Stock to restrict
the transfer thereof.
The Consultant hereby agrees not to resell the shares of Common Stock without
compliance with the Act and any applicable state securities laws. The Consultant
hereby represents and warrants that:
3
<PAGE>
(a) the Consultant has received and carefully read the following: (i) the
Corporation's Annual Report on Form 10-KSB for the period ended September 30,
1994 (File No. 0-21852); (ii) the Corporation's Quarterly Reports on Form 10-QSB
for the periods ended December 31, 1994, March 31, 1995 and June 30, 1995 (File
No. 0-21852); (iii) the Corporation's Current Reports on Form 8-K dated April 1,
1995, October 24, 1995 and November 27, 1995, as amended (File No. 0-21852);
(iv) all other information necessary to verify the accuracy and completeness of
the Corporation's representations, warranties and covenants made herein; and (v)
written or verbal responses for all questions the Consultant has submitted to
the Corporation regarding its acquisition of the securities described herein,
all of which the Consultant acknowledges have been provided to the Consultant
(the "Corporate Materials"). The Consultant has not been furnished with any
other materials or literature relating to the acquisition of the securities
described herein, other than the Corporate Materials. The Consultant has been
given the opportunity to ask questions of and to receive answers from the
Corporation concerning the terms and conditions of the acquisition of the
securities described herein and the Corporate Materials, and to obtain such
additional written information necessary to verify the accuracy of same as the
Consultant desires in order to evaluate the acquisition of and investment in the
securities described herein. The Consultant acknowledges and confirms that the
written and/or verbal responses provided to the Consultant by the Corporation in
response to the Consultant's questions are not contrary to or inconsistent with,
nor do they in any way conflict with the information set forth in the Corporate
Materials. The Consultant further acknowledges that it fully understands the
information contained in the Corporate Materials and the Consultant has had the
opportunity to discuss any questions regarding the Corporate Materials with its
counsel or other advisor. Notwithstanding the foregoing, the only information
upon which the Consultant has relied is that set forth in the Corporate
Materials and that derived by its own independent investigation. The Consultant
acknowledges that the Consultant has received no representations or warranties
from the Corporation or its employees or agents in making an investment decision
related to the acquisition of the securities described herein, other than as set
forth herein;
(b) the Consultant is aware that the acquisition of the securities described
herein is a speculative investment involving a high degree of risk and that
there is no guarantee that the Consultant will realize any gain from its
acquisition of or investment in such securities. The Consultant has specifically
reviewed the Corporate Materials with a view toward acquiring the securities
described herein;
(c) the Consultant understands that no federal or state agency or other
authority: (i) has made any finding or determination regarding the fairness of
the transactions described herein, (ii) has made any recommendation or
endorsement of the transactions described herein, or (iii) has passed in any way
upon this agreement or the Corporate Materials;
(d) the Consultant: (i) is acquiring the securities described herein solely
for its own account for investment purposes only and not with a view toward
resale or distribution thereof, either in whole or in part; and (ii) has no
contract, undertaking, agreement or other arrangement, in existence or
contemplated, to sell, pledge, assign or otherwise transfer the securities to
any other person;
4
<PAGE>
(e) the Consultant has adequate means of providing for its current needs and
contingencies and has no need for liquidity in the investment in the securities
described herein. The Consultant has read, is familiar with and understands Rule
501 of Regulation D and represents that it is an "accredited investor" as
defined in Rule 501(a) of Regulation D under the Act. The Consultant has no
reason to anticipate any material change in its financial condition for the
foreseeable future;
(f) the Consultant is financially able to bear the economic risk of an
investment in the securities described herein, including the ability to hold
such securities indefinitely and to afford a complete loss of an investment in
such securities;
(g) the Consultant's overall commitment to investments which are not readily
marketable is not disproportionate to the Consultant's net worth, and the
Consultant's investment in the securities described herein will not cause such
overall commitment to become excessive. The Consultant understands that the
statutory basis on which such securities are being issued to the Consultant
would not be available if the Consultant's present intention were to hold such
securities for a fixed period of time or until the occurrence of a certain
event. The Consultant realizes that, in the view of the Commission, the
acquisition of such securities now with a present intention to resell by reason
of a foreseeable specific contingency or any anticipated change in the market
value of such securities, or in the condition of the Corporation or that of the
industry in which the business of the Corporation is engaged or in connection
with a contemplated liquidation, would, in fact, constitute an acquisition
and/or purchase with an intention inconsistent with the Consultant's
representations to the Corporation and the Commission would then regard such
purchase as a purchase for which the exemption from registration under the Act
relied upon by the Corporation in connection herewith is not available; and
(h) the Consultant has such knowledge and experience in financial and
business matters as to capable of evaluating the merits and risks of the
acquisition of and an investment in the securities described herein.
Kalo and the Consultant hereby acknowledge that they have been advised that
the Commission has commenced an informal inquiry into certain business,
accounting and/or operational practices of the Corporation that may adversely
affect the ability of the Corporation to register the offer and sale of the
shares of Common Stock subject hereto. Kalo and the Consultant further
acknowledge that they have been provided with copies of the correspondence from
the Commission in connection therewith.
5. Confidential Information. The parties hereto recognize that it is fundamental
to the business and operation of the Corporation, its subsidiaries and divisions
thereof to preserve the specialized knowledge, trade secrets, and confidential
information of the foregoing entities. The strength and good will of the
Corporation is derived from the specialized knowledge, trade secrets, and
confidential information generated from experience through the activities
undertaken by the Corporation, its subsidiaries and divisions thereof. The
disclosure of any of such information and the knowledge thereof on the part of
competitors would be beneficial to such
5
<PAGE>
competitors and detrimental to the Corporation, its subsidiaries and divisions
thereof, as would the disclosure of information about the marketing practices,
pricing practices, costs, profit margins, design specifications, analytical
techniques, concepts, ideas, process developments (whether or not patentable),
customer and client agreements, vendor and supplier agreements and similar items
or technologies. By reason of performance under this Agreement, the Consultant
may have access to and may obtain specialized knowledge, trade secrets and
confidential information such as that described herein about the business and
operation of the Corporation, its subsidiaries and divisions thereof. Therefore,
the Consultant hereby agrees that he shall keep secret and retain in confidence
and shall not use, disclose to others, or publish, other than in connection with
the performance of services hereunder, any information relating to the business,
operation or other affairs of the Corporation, its subsidiaries and divisions
thereof, including but not limited to, confidential information concerning the
marketing practices, pricing practices, costs, profit margins, products,
methods, guidelines, procedures, engineering designs and standards, design
specifications, analytical techniques, technical information, customer, client,
vendor or supplier information, employee information, or other confidential
information acquired by each of them in the course of providing services for the
Corporation. The Consultant agrees to hold as the Corporation's property all
notes, memoranda, books, records, papers, letters, formulas and other data and
all copies thereof and therefrom in any way relating to the business or
operation of the Corporation, its subsidiaries and divisions thereof, whether
made by the Corporation or the Consultant or as may otherwise come into the
possession of the Consultant. Upon termination of this Agreement or upon the
demand of the Corporation, at any time, the Consultant shall deliver the same to
the Corporation within twenty-four (24) hours of such termination or demand.
6. Reformation. In the event that a court of competent jurisdiction determines
that the confidentiality provisions hereof are unreasonably broad or otherwise
unenforceable because of the length of their respective terms or the breadth of
their territorial scope, or for any other reason, the parties hereto agree that
such court may reform the terms and/or scope of such covenants so that the same
are reasonable and, as reformed, shall be enforceable.
7. Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Delaware without regard to the principles of
conflicts of laws thereof and shall inure to the benefit of and be binding upon
Kalo, the Consultant and the Corporation and their respective legal successors
and assigns.
8. Remedies. In the event of a breach of any of the provisions of this
Agreement, the non- breaching party shall provide written notice of such breach
to the breaching party. The breaching party shall have thirty (30) days after
receipt of such notice in which to cure its breach. If, on the thirty-first
(31st) day after receipt of such notice, the breaching party shall have failed
to cure such breach, the non-breaching party thereafter shall be entitled to
seek damages. It is acknowledged that this Agreement is of a unique nature and
of extraordinary value and of such a character that a breach hereof by the
Consultant or the Corporation shall result in irreparable damage and injury for
which the non-breaching party may not have any adequate remedy at law.
Therefore, if, on the thirty-first (31st) day after receipt of such notice, the
breaching party shall have failed to cure such breach, the non-breaching party
shall also be
6
<PAGE>
entitled to seek a decree of specific performance against the breaching party,
or such other relief by way of restraining order, injunction or otherwise as may
be appropriate to ensure compliance with this Agreement. The remedies provided
by this section are non-exclusive and the pursuit of such remedies shall not in
any way limit any other remedy available to the parties with respect to this
Agreement, including, without limitation, any remedy available at law or equity
with respect to any anticipatory or threatened breach of the provisions hereof.
9. No Continuing Waiver. The waiver by any party of any provision or breach of
this Agreement shall not operate as or be construed to be a waiver of any other
provision hereof or of any other breach of any provision hereof.
10. Notice. Any and all notices from either party to the other which may be
specified by, or otherwise deemed necessary or incident to this Agreement shall,
in the absence of hand delivery with return receipt requested, be deemed duly
given when mailed if the same shall be sent to the address of the party set out
on the first page of this Agreement by registered or certified mail, return
receipt requested, or express delivery (e.g., Federal Express).
11. Severability of Provisions. The provisions of this Agreement shall be
considered severable in the event that any of such provisions are held by a
court of competent jurisdiction to be invalid, void or otherwise unenforceable.
Such invalid, void or otherwise unenforceable provisions shall be automatically
replaced by other provisions which are valid and enforceable and which are as
similar as possible in term and intent to those provisions deemed to be invalid,
void or otherwise unenforceable. Notwithstanding the foregoing, the remaining
provisions hereof shall remain enforceable to the fullest extent permitted by
law.
12. Assignability. This Agreement shall not be assignable without the prior
written consent of the non-assigning party or parties hereto and shall be
binding upon and inure to the benefit of any heirs, executors, legal
representatives or successors or permitted assigns of the parties hereto.
13. Entire Agreement; Amendment. This Agreement contains the entire agreement
among the Corporation, Kalo and the Consultant with respect to the subject
matter hereof. This Agreement may not be amended, changed, modified or
discharged, nor may any provision hereof be waived, except by an instrument in
writing executed by or on behalf of the party against whom enforcement of any
amendment, waiver, change, modification or discharge is sought. No course of
conduct or dealing shall be construed to modify, amend or otherwise affect any
of the provisions hereof.
14. Headings. The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of the provisions of this Agreement.
15. Termination. The Corporation may terminate this Agreement with or without
cause at any time upon delivery of fifteen (15) days prior written notice to the
other parties hereto. Any such termination shall result in the termination of
Kalo's and/or the Consultant's respective
7
<PAGE>
rights to receive any further compensation, except with respect to accrued
compensation which Kalo and/or Consultant shall have the right to receive
notwithstanding termination hereof.
16. Survival. Sections 5 through 13 shall survive the termination for any reason
of this Agreement (whether such termination is by the Corporation, upon the
expiration of this Agreement by its terms or otherwise).
* * * * *
8
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement for Consulting
Services to be executed and delivered by their duly authorized officers as set
forth below and have caused their respective corporate seals to be hereunder
affixed as of the date first above written.
FRANKLIN OPHTHALMIC INSTRUMENTS CO., INC.
By: /s/ Michael J. Carroll
----------------------------------
Michael J. Carroll, President
KALO ACQUISITIONS, L.L.C.
By: /s/ Jason H. Pollak
-----------------------------------
Jason H. Pollak, Manager
THE CONSULTANT
/s/ Jason H. Pollak
----------------------------------------
Jason H. Pollak
9
EXHIBIT 10.3
FRANKLIN OPHTHALMIC INSTRUMENTS CO., INC.
1237 Naperville Drive
Romeoville, Illinois 60441
Telephone: (708) 759-7666
Facsimile: (708) 759-1744
April 30, 1996
Mr. Jason H. Pollak, Managing Member
Tiger Eye Capital, L.L.C.
Tiger Eye Acquisitions, L.L.C.
165 EAB Plaza
West Tower, Suite 628
Uniondale, New York 11566-0165
Dear Jay:
This letter is intended to set forth the understanding that the Company has
reached with you and each of Tiger Eye Capital, L.L.C. (formerly Kalo Financial
Corp., L.L.C. and referred to herein as "Tiger Eye Financial") and Tiger Eye
Acquisitions, L.L.C. (formerly Kalo Acquisitions, L.L.C. and referred to herein
as "Tiger Eye Acquisitions") relating to the agreements listed below (the
"Agreements"):
1. Consulting Agreement, dated June 30, 1995;
2. Finder's Agreement, dated June 30, 1995; and
3. Consulting Agreement, dated December 19, 1995.
By counter-execution below, you and each of Tiger Eye Financial and Tiger Eye
Acquisitions hereby agree with the Company to amend the Agreements such that
performance of the obligations thereunder shall be due at such time as the
Company becomes current with respect to the reporting requirements of the
Securities Exchange Act of 1934 by filing the following: (i) Form 10-KSB for the
fiscal year ended September 30, 1995; and (ii) Forms 10-QSB for the fiscal
quarters ended December 31, 1995 and March 31, 1996.
FRANKLIN OPHTHALMIC INSTRUMENTS CO., INC.
By: /s/ Michael J. Carroll
---------------------------------------------
Michael J. Carroll, Chief Executive Officer
<PAGE>
Mr. Jason H. Pollak
April 30, 1996
Page 2
Agreed and accepted this 30th day of April, 1996:
TIGER EYE CAPITAL, L.L.C.
(formerly Kalo Financial Corp., L.L.C.)
By: /s/ Jason H. Pollak
----------------------------------
Jason H. Pollak, Managing Member
TIGER EYE ACQUISITIONS, L.L.C.
(formerly Kalo Acquisitions, L.L.C.)
By: /s/ Jason H. Pollak
- ---------------------------------------
Jason H. Pollak, Managing Member
/s/ Jason H. Pollak
- ---------------------------------------
Jason H. Pollak, Individually
EXHIBIT 23.1
July 11, 1996
Board of Directors
Franklin Ophthalmic Instruments Co., Inc.
1265 Naperville Drive
Romeoville, Illinois 60446
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have as acted as counsel to Franklin Ophthalmic Instruments Co., Inc. a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company of a registration statement on Form S-8 (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the issuance by the Company of up to 600,000 shares of common
stock, par value $.001 per share (the "Common Stock") to Jason H. Pollak (the
"Consultant") pursuant to the terms of certain consulting agreements, dated as
of June 30, 1995 and December 31, 1995, by and among the Company, Tiger Eye
Acquisitions, L.L.C. (formerly Kalo Acquisitions, L.L.C.) and the Consultant, as
amended (the "Consulting Agreement").
We have examined the Articles of Incorporation and Bylaws of the Company, the
minutes of various meetings and consents of the Board of Directors of the
Company, the Registration Statement, the Consulting Agreement, originals or
copies of all such records of the Company, agreements, certificates of public
officials, certificates of officers and representatives of the Company and
others, and such other documents, certificates, records, authorizations,
proceedings, statutes and judicial decisions as we have deemed necessary to form
the basis of the opinion expressed herein. In such examination, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity to originals of all documents submitted to
us as copies thereof. As to various questions of fact material to such opinion,
we have relied upon statements and certificates of officers and representatives
of the Company and others. We are not herein passing upon and do not assume
responsibility for the accuracy, completeness or fairness of the statements or
other provisions contained in any of the foregoing materials.
<PAGE>
Board of Directors
July 11, 1996
Page 2
In connection with the preparation of this opinion, we have reviewed such
questions of law as we have deemed necessary. We do not herein give any opinion
with respect to the laws of any jurisdiction other than the general laws of the
United States of America, the federal securities laws, the laws of the District
of Columbia and the General Corporation Law of the State of Delaware. Except as
otherwise provided herein, we have assumed that, insofar as the laws of another
jurisdiction may be applicable to any matters to which this opinion may relate,
such laws are identical to the laws of the District of Columbia, however, we
express no opinion as to the extent to which the laws of the District of
Columbia or such other jurisdiction may apply.
Based upon the foregoing, we are of the opinion that the 600,000 shares of
Common Stock issuable to the Consultant pursuant to the terms of the Consulting
Agreement have been duly authorized and reserved for issuance and, when issued
in accordance with the terms of the Consulting Agreement will be duly
authorized, validly issued, fully paid and nonassessable.
We hereby consent to be named in the Registration Statement as attorneys who
have passed upon legal matters in connection with the issuance of the securities
described therein. We further consent to your filing a copy of this opinion as
an exhibit to the Registration Statement.
DE MARTINO FINKELSTEIN ROSEN & VIRGA
By: /s/ Ralph V. De Martino
------------------------------------------
Ralph V. De Martino, a Principal
EXHIBIT 23.2
Franklin Ophthalmic Instruments Co., Inc.
Chicago, Illinois
We hereby consent to the incorporation by reference in this registration
statement of our report dated February 6, 1996, except for notes 5, 6 and 8 as
to which the date is April 19, 1996, and note 3 as to which the date is May 2,
1996, relating to the consolidated financial statements of Franklin Ophthalmic
Instruments Co., Inc. appearing in the company's annual report on Form 10-KSB
for the year ended September 30, 1995.
/s/ BDO Seidman L.L.P.
Chicago, Illinois
July 11, 1996
